David Coleman (Banks, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

I'm very pleased to have the opportunity to speak on the Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024. But I shouldn't be speaking on this bill, because this bill should never, ever have been put before this parliament. This is one of the worst pieces of legislation ever presented to the Australian parliament by a government. It is an appalling attack on free speech. It has no place in Australia. It belongs in the bin.

We started this whole sordid story back in June, when the government published mark-1 of this misinformation bill. The reaction had very little precedent in the history of our country. Some 24,000 submissions were made to the inquiry into this bill. What did they overwhelmingly say? They overwhelmingly said that this was an attack on free speech which would mean ordinary Australians have their legitimately held opinions suppressed and censored. The overwhelming majority of the submissions said this bill must be thrown aside and never seen again.

The process played out for six months, and it was an unedifying process. The bill was slammed by the Human Rights Commission, by the NSW Council for Civil Liberties, by religious bodies—frankly, by pretty much everyone—because it was such an appalling piece of legislation. No-one could quite get their head around the fact that the Albanese government had put it forward. We know the Prime Minister is not a details person, so he probably hadn't read the bill. He would haven't read the bill, but the Minister for Communications presumably did and thought it was a really good idea to put it forward. We get to November. The minister says, 'Actually, we'd better get rid of this,' and withdraws the bill. Then the government goes through a 10-month process of consulting on the bill. Rather than just saying, 'This is a terrible bill. We're not proceeding,' they've consulted on it for some 10 months. But they've come back with a bill that still betrays our democracy, still has no place in Australia and still is a shocking attack on free speech. This bill will radically alter the landscape of political communication in Australia.

Do you know what the government did when they put out this bill? They did something that is very concerning. It's a very complex bill that's seeking to change political communication in Australia. How long would you normally give people to put in submissions on an issue of that complexity—a radical change to how we communicate, with the opportunity for government regulators to censor free speech? You'd give people a while to comment on that, wouldn't you? You'd especially do that if you've got an explanatory memorandum that's more than 100 pages and a bill with many, many provisions. Do you, Deputy Speaker, know how long the government gave people to put in submissions? Seven days. They closed submissions on 30 September. If you go to the website of the committee that's looking into this bill and you try and put in a submission, you can't because the submissions have closed, which is shameful.

What did people say about that? What did the NSW Council for Civil Liberties say about that appalling process? They said:

We strongly assert that the decision to allow only seven working days for public submissions on such a critical and complex piece of legislation is incompatible with the principles of transparent governance. This extremely short process will exclude many voices and undermines the democratic principles of participation and inclusion.

That's what they said about this government's process on the bill. What about the Catholic Bishops Conference? What did they say? They said:

Given the Committee has only allowed one week for the preparation of submissions, the Conference has not had time to give the Bill adequate consideration …

This is the Catholic Bishops Conference, which speaks on behalf of the millions of Catholics in Australia, and they have said in their submission that they did not have adequate time to consider the bill. That is an absolute disgrace. What did the Queensland Council for Civil Liberties say? They said:

… we object to the extraordinarily short period of time for the making of submissions in relation to this important Bill.

Other submissions that have been published say very similar things.

I would have thought that the government would show greater respect for the Catholics of Australia than have a situation where the Catholic Bishops Conference say that they were only allowed one week for the preparation of submissions, and that they have not had time to give the bill adequate consideration. You would have thought that that might concern the government. But no, because the Minister for Communications has structured this process to deny people the opportunity to participate in submissions. It is absolutely shameful.

Then we get to the substance of the bill. That's where the story gets even worse. The fundamental structure of this bill is to give the government regulator ACMA, the Australian Communications and Media Authority, extraordinary powers to effectively determine what are and what are not acceptable statements online. Basically what ACMA does is say, 'Here are some rules that you, digital platforms, have to follow in relation to misinformation and disinformation, and, if you don't follow those rules, you could get fines of up to five per cent of your global revenue.' So, if you're a digital platform, that's going to get your attention, isn't it? You could get a fine of up to five per cent of your global revenue, so you're going to be listening to what ACMA say. They have the power. That gives ACMA an extraordinary power over those digital platforms.

When the bill talks about digital platforms, it's not just talking about the large ones. It's not just the Metas and Googles of the world; it extends to a huge number of websites. It includes podcasts. It includes websites that aggregate news. It includes websites that aggregate other forms of material. It can include message boards and a whole a range of different things. It includes search engines and so on. So it includes most of the internet, not only Australian sites but global sites. Any global site that has operations within Australia and provides services to Australians, which is effectively all of them, has to comply with this law. ACMA is going to be telling all of these so-called digital platforms what it is they have to do to comply with this rule.

What does the bill say about the sorts of things that ACMA can require? If you look at page 101 of the explanatory memorandum, it's quite clear. It says, for instance:

Digital communications platform providers could be required to use automated processes and technology to detect and act appropriately on misinformation and disinformation under a misinformation code or misinformation standard. For example, they could be required to use technology or algorithms to 'downrank' or reduce the spread of misinformation …

If we take out the technical talk, what does that mean? It means censoring stuff, censoring material—making sure people don't see it. If you're a digital platform and you've got ACMA hanging over your head and the threat of substantial fines, you of course are going to err on the side of ensuring you don't do anything which could fall foul of ACMA, and so you are going to censor material to make sure that you don't get fined. That's what is going to happen, and it's going to happen on a large scale.

As we turn to the key provisions of the bill, we have to remember that framework: ACMA decides how it is imposed on the platforms; ACMA has the force of law; and, if digital platforms don't comply, there are very significant consequences for them. One of the key issues here is that misinformation, as defined in the bill, is incredibly broad and will include things that are said by Australians, effectively, all the time. The definition of 'misinformation' includes statements that are held in good faith. You might believe something with all your heart. You might believe that it's true, and it's something you hold dear, but, under this bill, that can be misinformation. If it complies with the definition of misinformation, then, if the platforms don't take action about that so-called misinformation, they can get in a lot of trouble. We're not talking here about things like disinformation from foreign powers seeking foreign interference; we're talking about the opinions of ordinary Australians. This is a very important point. It doesn't have to be malicious, it doesn't have to be designed to deceive; it can be something that you absolutely and strongly believe to be true. That can be misinformation under this bill.

So how do you work out whether something is misinformation under this bill? There are basically two key elements to that. One is that it has to be, according to the bill, 'reasonably verifiable as false, misleading or deceptive' and the other is that is has to be 'reasonably likely to cause or contribute to serious harm'. We'll come back to the second one later. The first limb is 'reasonably verifiable' as 'misleading'. Think about that. Often, to reasonably verify that something is misleading is an entirely subjective process. To what I might think is misleading, one of my parliamentary colleagues on the other side of the House might say, 'No, that's not misleading.' To what someone in the community thinks is misleading, others may disagree. That's why what we do in a democracy is trust the superpower of the common sense of the average person. That is what democracy is all about. That common sense has served Australia incredibly well. That common sense, expressed through our democracy, has made us one of the greatest nations on earth—the greatest, I think. That's what we do in a democracy. We might disagree. Someone might have an unfashionable opinion. It might be an opinion seen as a little bit different. But that's okay, because in a democracy we're allowed to have unfashionable opinions. We're allowed to have opinions that might not accord with the so-called experts of the day.

In the explanatory memorandum, the bill goes into the question, 'How do you establish if something is misleading?' The explanatory memorandum says:

In practical terms, digital communications platform providers will need to identify misinformation or disinformation themselves, including identifying content on their digital communications platforms that contains information that is reasonably verifiable as false, misleading or deceptive, pursuant to such duties or relevant instruments.

Some matters that could be considered when determining if content is reasonably verifiable as false, misleading or deceptive include:

These are two examples that the government's own notes to the bill provide.

The digital platforms are supposed to somehow sift through the material that appears on their platforms and determine if it might be misleading, and what the government is telling them to do in order to work out if it's misleading is, effectively, ask, 'Has it been fact checked by some third-party organisation, and what do the experts say?' Let's be frank: fact checkers aren't always right. There are numerous examples of things described as fact checks which are themselves subjective, which themselves constitute an opinion. Whilst we all benefit immensely from the work of experts in all fields of endeavour, and we're fortunate to live in a country with so many people with such great expert skills, it's also true that experts are not perfect.

It's also true that expert opinion can change. If we think about history, think about all the times in history where somebody came along with an idea that was different and was shunned by the experts and fact checkers of that day—'You're wrong; that's not how the sun rotates around the earth'—on whatever the scientific debate of the day was, or a debate on any topic. It's very clear that expert opinion, whilst valuable, is far from infallible. I think pretty much every expert would acknowledge that—including Dr Nick Coatsworth, who spoke about this issue very eloquently earlier this week. It is also true that fact checkers are themselves human and subjective, and they make mistakes. The notion that we're going to hold up these two bodies as somehow infallible and determining what the rest of us can and cannot say is extraordinary, but it's in the legislation put forward by the government of Australia.

I should note that, if you look around the world for similar legislation to this misinformation bill, you won't find anything quite like this—certainly not in places like the United States, the United Kingdom, New Zealand or a whole range of places. This is a very radical proposal. The definition of 'working out if something is misleading' is plainly absurd.

The second thing that the digital platforms have to do, bearing in mind that the digital platform might be a podcaster in Brunswick—it doesn't have to be some huge digital platform—is to assess nine different matters under the bill, extraordinarily, to determine if it is likely to cause or contribute to serious harm. It doesn't have to actually cause or be likely to cause harm; it only has to be likely to contribute to harm, which, again, is a very broad concept, as many people have pointed out. I will quickly read out what the digital platforms have to consider—and this is not optional; it actually says 'must' in the legislation. They have to have regard to the following matters:

(a) the circumstances in which the content is disseminated;

(b) the subject matter of the information in the content that is reasonably verifiable as false, misleading or deceptive;

(c) the potential reach and speed of the dissemination;

(d) the author of the information;

(e) the purpose of the dissemination;

(f) whether the information has been attributed to a source and, if so, the authority of the source and whether the attribution is correct;

(g) other related information disseminated that is reasonably verifiable as false, misleading or deceptive—

and my personal favourite:

(h) any matter determined by the Minister …

This is extraordinary. The government of Australia has put this forward. This is an extraordinary thing.

I think it's particularly notable that, in this list of things, one of the things that have to be considered is the author of the information. The digital platform is effectively required to conduct an examination of who the author is. Why would that be there? Why does the identity of the author have to be interrogated? Think about that in practice. It is absurd. As I said, the platform doesn't have to believe that harm has been caused. They don't even have to believe that harm is reasonably likely to have been caused. They just have to believe that it's reasonably likely harm could have been contributed to, which is an extraordinarily broad concept. As I say, if you look at the submissions to this bill, they point these things out very, very clearly.

You've still got more to do if you're the digital platform. Your job is not complete. You then have to assess whether or not the content is one of 32 categories of things that can be serious harm. These are all the various things that are covered by the bill. This is a very important point: within those 32 categories are elections and referendums. Elections are in, as are referendums. If you look at page 47 of the explanatory memorandum of the bill, it says very clearly in relation to what is captured that it includes:

… false, misleading or deceptive information about electoral candidates or referendum proposals, which could have the effect of denying Australians the right to have a say in the conduct of public affairs based on informed choice.

If something complies with the extraordinarily broad and convoluted definitions of misinformation in this bill and it's about an electoral candidate—it could be the Prime Minister, the Minister for Communications or anyone—then the digital platforms will need to ensure that they are taking action to ensure they don't get fined by ACMA, and it also applies to referendums.

Now, I seem to recall that we had a referendum not long ago. I seem to recall that, during that referendum, many arguments were put forward that the government didn't agree with. Those arguments were put forward in good faith by Australians who strongly disagreed with the referendum proposal. It turns out that 61 per cent of Australians had serious concerns about that referendum proposal. What did the government say every day in this chamber about those arguments that they didn't like about the referendum proposal? They said they were misinformation. But they did haven't this law then. Now they would.

So what happens in the next referendum? What happens when people criticise the government of the day—it might not be this government; it could be any government—and the government of the day says, 'That's misinformation and it breaches this law'? That is extraordinary. As I said, Dr Nick Coatesworth made some important contributions this week, talking about this issue in the context of public health and the fact that, whilst expert opinion on public health should of course be our guiding light, that doesn't mean that people shouldn't be allowed to take exception to it or disagree from time to time. That clearly is a very sensible observation.

It also includes imminent harm to the economy or a section of the economy. How broad is that? How many thing get said in this chamber every day that could be said to cause imminent harm to the economy or a section of the economy? It also requires the platforms to determine how serious the consequences of these various statements are.

But there is more. Section 68 of the bill acknowledges the fact that the Minister for Communications has the power to personally order misinformation investigations and misinformation hearings. We are here in the democracy of Australia. We've got an elected politician, and we've got a bill before us that says that that elected politician should be able to order an investigation into a digital platform if, in the minister's view, that digital platform isn't doing enough about misinformation and/or disinformation. The minister can also order a public hearing on these matters—again, in one of the world's great democracies. Imagine the Voice scenario. The minister says: 'I think digital platform X has misinformation about the Voice. I am ordering an investigation into that platform and I'm also ordering public hearings.' It's extraordinary that this is being contemplated in this legislation, and there are very serious consequences. If somebody doesn't appear before those inquiries or investigations, they can be fined. There are provisions under section 202 of the act for jail time as well, if someone doesn't appear. Those powers are extraordinary.

Then you also have this completely unfair situation where some Australians are exempted and others are not. Academics, scientists, artists and comedians—I have nothing against any of those groups; they all contribute immensely to our country, but they're not infallible. Under this bill, if an ordinary Australian disagrees with, say, an academic about a topic, as long as the academic is talking in the context of their job, effectively, the statement made by the academic cannot be misinformation, but the statement made by the ordinary Australian can be misinformation. How on earth can that be fair or appropriate? And that also applies if the person who isn't the academic says exactly the same thing as the academic: one can be misinformation and one can't.

Finally, there's a concerning impact here on Australians of religious faith. The government has included a so-called exemption for religion, but the exemption has enormous holes in it. The Catholic Bishops Conference said:

The Bill … leaves open the question of what is considered "reasonable" and whether a "religious purpose" extends beyond religious institutions to Australians practicing or sharing their religious faith. It also leaves open to a judicial authority to decide what is and is not "reasonable" when it comes to expressing a religious belief, and whether the expression of a religious belief is always for a "religious purpose." As the Conference has stated in numerous submissions on other items of legislation, it is suboptimal to have courts and tribunals adjudicate on the reasonableness of religious expression.

That is very concerning for Australians of faith.

This bill is a shameful attack on our democracy. It should never have been put forward. It is an appalling reflection on this government that it has been put forward. I would encourage anyone who's listening tonight to try and read this legislation. You'll be shocked by what you see in it. The coalition will fight this every step of the way because this bill belongs in the bin.

Debate interrupted.